Restitution Replacing Imprisonment? Exploring a Controversial Option

Legal Literacy  - This article explains the law and procedure restitution in Indonesia, as well as cases that serve as references in decision-making. By: Elisabeth Simanjuntak, S.H.

Mario Dandy Case

Tuesday, August 15, 2023 The panel of judges in the South Jakarta District Court read out the verdict against Mario Dandy with Case Number 297/Pid.B/2023/PN.Jkt.Sel. In essence, the defendant was proven legally and convincingly guilty of committing severe abuse with prior planning, sentenced to 12 (twelve) years in prison, and also the defendant was obliged to pay restitution to the victim in the amount of 25 billion rupiahs. Where the Public Prosecutor at that time, demanded that the defendant Mario Article 355 paragraph 1 of the Criminal Code jo. Article 55 paragraph 1 number 1 of the Criminal Code Subsidiary article 353 paragraph (2) of the Criminal Code jo. article 55 paragraph (1) number 1 of the Criminal Code or the second charge article 76 C article 80 paragraph (2) of Law Number 35 of 2014 concerning amendments to Law number 23 of 2002 concerning Child Protection. In addition to the above charges, the defendant Mario Dandy was also demanded to pay restitution of 120 billion rupiah.

Can restitution be substituted for imprisonment?

Definition of Restitution

Restitution is compensation given to the victim or their family by the perpetrator of a crime or a third party. Restitution is regulated in the provisions of Law Number 31 of 2014 concerning amendments to Law Number 13 of 2006 concerning the Implementation of Restitution for Children Who Are Victims of Criminal Acts, and Government Regulation Number 7 of 2018 concerning the Provision of Compensation, Restitution and Assistance to Witnesses and Victims, and is also regulated in Supreme Court Regulation Number 1 of 2022 concerning Procedures for Resolving Applications and Granting Restitution and Compensation to Victims of Criminal Acts.

Parties Entitled to File for Restitution

In this case, the institution that has the right to submit and calculate restitution is the Witness and Victim Protection Agency (LPSK) with the approval and application from the family of the victim of the crime. Article 8 paragraph (9) of Supreme Court Regulation No. 1/2012 states “In the event that restitution will be paid by a third party, the third party must be present in court to be asked for their approval”. Based on the wording above, it is very clear that the third party who is present in court is asked for approval for the payment of restitution. It is different for children or those who are not legally capable, then the third party is responsible for paying restitution.

Supreme Court Regulation on Restitution

Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2022 concerning Procedures for Resolving Applications and Granting Restitution and Compensation to Victims of Criminal Acts. Article 8 paragraph 13:

In cases of trafficking in persons and terrorism, the decision also includes the length of imprisonment or confinement as a substitute in accordance with the provisions of the Law, namely in the event that the assets of the defendant and/or a third party are insufficient, which is calculated proportionally based on the amount of restitution that has been paid by the defendant and/or a third party.

In the wording of the article above, it explains the replacement of restitution with imprisonment or confinement, only for the crime of trafficking in persons and the crime of terrorism. Furthermore, Article 36 A paragraph 6 of Law Number 5 of 2018 concerning Terrorism, the perpetrator is subject to substitute imprisonment for a minimum of 1 (one) year and a maximum of 4 (four) years. Then, Article 50 paragraph 4 of Law Number 35 of 2014 concerning Trafficking in Persons (TPPO), the perpetrator is subject to substitute imprisonment for a maximum of 1 (one) year.

Decisions regarding Restitution

There are several Decisions that we can observe and compare, namely:

1. Decision Number 246 of 2015 PN Bekasi with Restitution of 3 million and imprisonment of 7 months.
2. Decision Number 55 of 2014 PN East Jakarta with restitution of 120 million subsidiary 3 months
3. Decision Number 244 of 2014 PN West Jakarta with restitution of 1.1 billion subsidiary 5 months
4. Decision Number 63/pid.b/2022/pn, where this decision has the same position and application of articles as the Mario case, the comparison factor is that the victim of persecution in decision number 63 died. Meanwhile, the restitution costs requested and which must be paid by the perpetrator are 100 million rupiah.

Conclusion

The above decision can be used as a reference, because there is no specific Law governing compensation or restitution for acts of persecution replaced by imprisonment. This restitution is given to restore or assist and repair the victim so that they can recover to their original state, or the compensation costs given by the perpetrator to the victim's family. Regarding the compensation experienced by the victim, of course the proof is formal proof, where there must be supporting documents related to the losses experienced by the victim. The calculation carried out by LPSK must also be reasonable and it is better to look at both sides, both the victim and the perpetrator. In this way, it is hoped that it can be achieved or found balanced justice and equivalent. *This article represents the opinions the author's personal views and does not represent the views of the Literasi Hukum Indonesia editorial team.